Loading...
HomeMy WebLinkAbout89-001 ThomasMs. Judith E. Thomas 8012 Crefeld Street Philadelphia, PA 19118 Dear Ms. Thomas: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG PENNSYLVANIA 171 OPINION OF THE COMMISSION DATE DECIDED: February 22, 1989 DATE MAILED: March 7, 1989 Re: Statement of Financial Interests; Public Official, Philadelphia County Board of Assistance; Appeal of Advice of Counsel This opinion is issued pursuant to your appeal of the Advice of Counsel, No. 88 -649, issued on November 23, 1988. Whether a member of a County Board of Public Assistance is a public official required to file the Statement of Financial Interests pursuant to the State Ethics Act. II. Factual Basis for Determination: 89 -001 The issue which you presented was originally processed as a request for an advice of counsel and as a result on November 23, 1988 Advice of Counsel No. 88 -649 was issued. That advice concluded that you as a member of the Philadelphia County Board of Public Assistance are a public official within the purview of the State Ethics Act and, therefore, are required to file a Statement of Financial Interest in conformity with that law on or before May 1 of each year in which you serve and for the year after you leave such position. On December 5, 1988, this Commission received your letter of November 30, 1988, wherein you appealed the above Advice. By letter of December 7, 1988 you were notified that your appeal would go before the full Commission and that you would be notified of the date, time and location of that meeting by separate letter. You were then notified by letter of February 1, 1989 of the date, time and location of the public meeting. Ms. Judith E. Thomas Page 2 In your appeal of advice you allege that you disagree with the conclusion of the Advice of Counsel. In particular you state that there is nothing in the definition of the term public official which would include you in the current position that you hold. You express your belief that the definition of the term public official specifically would not include you in your position as a member of the County Board of Assistance. The determination of this matter will be made by applying the State Ethics Act and Regulations to your position. III. Discussion: Since you challenge whether you, as a member of a County Board of Assistance, are a public official required to file the Statement of Financial Interests under the Ethics Act, it is necessary to analyze the duties, functions and responsibilities of County Boards of Public Assistance in order to determine whether you are covered under the definition of public official and the Regulations of the Commission. Philips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984). The functions of a County Board of Public Assistance are set forth in Section 419 of the Public Welfare Code of 1967 as follows: "S419. Administration of assistance and related functions Each county shall: (1) Administer public assistance in the county, and determine the eligibility of applicants and continued eligibility for assistance of persons receiving the same in accordance with law and the rules, regulations and standards established by the department. (2) Take measures to promote the welfare and self - dependency of individuals and families eligible for assistance by helping them to secure rehabilitative, remedial or other constructive aid, through local community resources, or in the absence or inadequacy of such resources, through direct provision of such aid, in accordance with rules, regulations and standards adopted by the department. Ms. Judith E. Thomas Page 3 (3) With the approval of the secretary, supervise the administration of and promote any other public function related to assistance, or the work of the department, or of the county board, which may be committed to the county board by a political subdivision of the Commonwealth." 62 P.S. S419. The Ethics Act provides as follows: Section 2. Definitions. "Public Official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public Official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 5402. The Regulations of the State Ethics Commission similarly defines the term public official as above and also set forth that the term includes any individual: Section 1.1 Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, Ms. Judith E. Thomas Page 4 issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. 51 Pa. Code S1.1. Ms. Judith E . Thcmas Page 5 In applying the Ethics Act and Regulations to your position, this Commission must not only consider the specific duties that you might perform but also must review the powers that County Boards of Public Assistance have under statutory law, regardless of whether any given board so exercises all or any part of its powers. Additionally, this Commission is mandated to apply the Ethics law broadly as to coverage but narrowly as to exclusions. See Philips, supra, wherein the Commonwealth Court of Pennsylvania directed that coverage of the Ethics Act was to be broadly rather than narrowly construed and that exclusions were to be narrowly rather than broadly construed. An application of the Ethics Act and the Regulations leads to the conclusion that you are a public official required to file the Statement of Financial Interests. Specifically, it is noted that under the Public Welfare Code, County Boards of Public Assistance do have the power to administer public assistance at the county level, make determinations as to eligibility for assistance and continued eligibility, take measures to promote welfare and self- dependency of families and individuals through helping them to secure remedial or rehabilitative or constructive aid and to supervise with the approval of the secretary of welfare the administration and promotion of public functions related to assistance or work of the department or county board. From the above it is clear that a County Board of Public Assistance is not merely an advisory board since it does satisfy the criteria set forth in subparagraph (i)(A) and (B) under Section 1.1 of the Regulations of this Commission. It must be reemphasized that the test is not whether any given board exercises the statutory powers vested in it; the test is what powers have been conferred by the General Assembly to those boards regardless of whether they exercise said powers. Therefore, assuming arguendo that your particular Philadelphia County Board of Public Assistance would be "advisory" in the sense that it does not vote, does not expend money or receive money, the controlling factor in the case is the Public Welfare Code which gives County Boards of Public Assistance specific powers which are substantive rather than merely advisory in nature. Therefore, given the powers which are conferred upon a County Board of Public Assistance, you as a member of the Philadelphia County Board of Public Assistance are a public official as that term is defined under the State Ethics Act and the Regulations of this Commission. IV. Conclusion: You as a member of the Philadelphia County Board of Public Assistance are a public official and as such are required to file the Statement of Financial Interests. Accordingly, you must file the Statement of Financial Interests for each you hold the position and the year following your termination of service. Advice of Counsel 88- 649 is affirmed and your appeal is dismissed. such. Ms. Judith E. Thomas Page 6 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. This letter is a public record and will be made available as Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, Joseph W. Marshall, III Chairman